Trump’s EPA is gearing up to revoke a cornerstone climate change tool. Will it backfire?

Striking down the endangerment finding will very likely wind up in court. It could be a tough fight for the Trump administration to win.

Photo courtesy Ian Barbour.

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The Trump administration is reportedly ready to mount an aggressive effort to revoke a foundational climate change legal finding, but experts aren’t so sure the federal government would come out on top once the fight inevitably winds up in court.

The fight in question revolves around the U.S. Environmental Protection Agency’s so-called endangerment finding. That’s the 2009 Clean Air Act determination that greenhouse gas emissions endanger human health, which has been used to establish emission standards for things like cars and power plants.

It’s been targeted by the fossil fuel industry and its allies for years.

Legal experts told Landmark that any effort to revoke the determination would require scientific evidence that undermines the core finding that greenhouse gas emissions pose a threat to human health, which is more difficult now than 16 years ago given the advances in climate science.

And that means the EPA’s bold effort will surely wind up facing strong challenges in court, where they could at the very least tie up limited federal resources.

“I think they would be spending an enormous amount of time trying to do something that would not survive in the long term,” Jeff Holmstead, an attorney at the law firm Bracewell and former EPA official during the Bush administration, told Landmark.

He said one obstacle is simply manpower, and that many EPA scientists would likely rather resign than say greenhouse gas emissions aren’t a danger.

“And I think there's also a pretty significant question as to whether revoking the endangerment finding would pass muster in the courts,” he said.

Years of legal challenges and lobbying

The endangerment finding has roots all the way back to 1999, when conservation and environmental groups petitioned the EPA to regulate greenhouse gas emissions from vehicles under the Clean Air Act’s Section 202.

That section of the law requires the EPA to set emission standards for new motor vehicles and engines for pollutants that “may reasonably be anticipated to endanger public health or welfare."

The Bush administration refused, and environmental groups and Democrat-led states like Massachusetts sued. In 2007, the U.S. Supreme Court ruled in the landmark case Massachusetts v. EPA that the agency had statutory authority to regulate carbon dioxide and other greenhouse gases because they fall within the Clean Air Act’s broad definition of an air pollutant.

That decision kicked the issue back to the EPA to either make a determination that greenhouse gas emissions endanger the public or explain why it didn’t see the need, and in 2009 the Obama administration issued the finding now under attack by the Trump administration.

In between then and now, the fossil fuel industry and its allies have repeatedly failed to overturn the finding in court or through lobbying, while rules have been crafted citing the finding not only for motor vehicles but also for big emission sources like power plants.

And, since 2009, the scientific consensus that greenhouse gas emissions cause climate change — which means stronger storms, sea level rise, drought and other impacts — has only grown stronger.

Multiple paths forward for the Trump EPA

Jody Freeman, a professor at Harvard Law and expert on administrative and environmental law, told Landmark that there are multiple ways the Trump administration’s fight against the endangerment finding could play out.

The first and most obvious would be to mount a full-on effort to revoke by updating the science underlying the finding, which Freeman said would be the “most far reaching, the most audacious” path forward.

She said she thinks the administration would have “a hard time succeeding in the courts” with that approach, given the “overwhelming amount of science on the matter.”

“They don’t have to go that far, but they may not be able to help it — I mean, they have a hard time with restraint,” Freeman said. “I can imagine them going that far for ideological reasons, or because they want to roll the dice, or they just want to have the fight because they think it’s good politics to go out there and be as anti-science as possible, even if they lose in court.”

But other strategies could significantly hobble EPA’s ability to regulate greenhouse gas emissions even absent a full revocation. One approach, adopted by the first Trump administration, would be to set a threshold that says only emissions sources like power plants that are responsible for 3% or more of total U.S. emissions pose a threat (the largest power plant in the country emits a fraction of that).

The agency could also simply announce the EPA is reviewing the ruling, and then hold off on coming to a conclusion indefinitely.

Doing so would effectively stop any new greenhouse gas-based regulations, Freeman said, and invite litigation from outside groups seeking to force the EPA to honor its obligations in the Clean Air Act. And that could bring the issue back to the Supreme Court, where the bench is very different than it was when Massachusetts v. EPA was handed down.

“They might think they've got enough votes that would effectively overturn that decision. You never know,” she said. “They might swing for the fences.”

A useful shield and wasted time?

One wrinkle that’s worth noting is that the EPA’s greenhouse gas endangerment finding may provide some important legal protections for the fossil fuel and utility companies, which have been sued by dozens of states and local governments over climate change damages in state court. Those lawsuits have largely been filed in state court under claims like public nuisance, though industry has argued the claims are displaced by federal law, including the Clean Air Act.

The Edison Electric Institute (EEI), a trade group that represents electric utilities, is among the industry voices that has argued against eliminating the endangerment finding in recent years. It has said that the EPA having authority over greenhouse gas emissions has made complying with regulations more predictable, and warned that the return of state law-based legal authorities could be damaging.

“EEI has been surprising upfront about the fact they oppose eliminating the EPA's endangerment finding for” greenhouse gas emissions, Dave Anderson, the policy and communications manager for the Energy and Policy Institute, told Landmark. “Because doing so could expose [greenhouse gas] emitters to a wave of climate tort litigation in federal court.”

Holmstead, the attorney at Bracewell, said that focusing on the endangerment finding would also mean that the Trump EPA is potentially neglecting other policy changes that could be longer-lasting.

“It would make it difficult for them to do some of the other regulatory reforms that, in my view, are much more likely to be durable,” he said. “I think if they reverse the endangerment finding, the next time there's a Democratic administration, it would quickly be reversed.”